The Genocide Convention

An International Law Analysis

John Quigley

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317030720
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Génocide et crimes de guerre

The Genocide Convention explores the question of whether the law and genocide law in particular can prevent mass atrocities. The volume explains how genocide came to be accepted as a legal norm and analyzes the intent required for this categorization. The work also discusses individual suits against states for genocide and, finally, explores the utility of genocide as a legal concept.

PART ONE
OUTLAWING GENOCIDE

Chapter 1

A Crime Without a Name

The crime of genocide is a result of international efforts to deal with a phenomenon that has plagued the international community. Forcible acts are directed against individual members of a group in a way that threatens the group. In the twentieth century, the first atrocity episode to spur action by governments saw the Armenian population of Turkey as the victims. Numbering nearly two million, the Armenians were viewed as a secession threat by Turkey. In 1915, the onset of war brought the prospect that the Armenians would side with Turkey’s enemies. Turkey began deporting its Armenian population to Syria and Mesopotamia. The deportation was carried out with considerable brutality and included mass executions. Several hundred thousand Armenians perished.1 The historian Arnold Toynbee decried Turkey’s conduct, calling it “the murder of a nation.”2 It would be another generation, however, before an international crime would be defined to write into law what Toynbee had in mind.

A commission appointed by the World War I Allies to explore prosecutions for war-related atrocities drew up a suggested list of offenses.3 For future “international crimes,” proposals were aired for an international penal tribunal, either as a self-standing court, or as a function of the Permanent Court of International Justice, which had just been set up by the League of Nations. The French jurist Henri Donnedieu de Vabres described one potential category of offenses as follows: “attacks on humanity that might be perpetrated in a country under the influence of race hatred.”4 The Spanish jurist Quintiliano Saldaña suggested an internationally defined offense for “acts of savagery, such as major political or racial massacres.”5 Saldaña gave as examples then recent atrocities: “the massacres of Christian-Armenians and Russian Jews.”6 The reference to “Christian-Armenians” was to the Armenians killed during the 1915 deportation by Turkey. The reference to “Russian Jews” was to Jews killed in organized mass attacks (pogroms) in Russia around the turn of the century.

There had long been an understanding that atrocities during military hostilities were unlawful and of international concern. Jurists like Donnedieu de Vabres and Saldaña hoped to extend international jurisdiction to atrocities not necessarily connected to a war, and perpetrated within the territory of a single state. These were revolutionary proposals, infringing, as they did, on the traditional prerogative of states in their own territory.

No progress was made during the inter-war period towards defining international offenses or devising any international jurisdiction. Inroads were made, however, during the inter-war years on the domestic domain of states regarding treatment of nationals. A system emerged out of World War I for rights protection for minority groups in certain states of eastern Europe. The League of Nations presided over this system, with an oversight agency to which minorities could appeal.

Nonetheless, it was only after World War II that states began to be held internationally accountable for treatment of their nationals. It was in large measure the atrocities committed by the Third Reich against civilians that galvanized international opinion on rights protection, even though this would mean an international obligation of states regarding treatment of their own citizens. In this context the crime of genocide took shape.

Conception of an Offense of Genocide

The mass killing by the Third Reich served as a catalyst to defining a crime to deal with efforts to wipe out a people. On 24 August 1941, nine weeks after Germany invaded the Soviet Union, Winston Churchill made a radio broadcast in which he lauded the Russians for their resistance to Germany’s eastward advance. Said Churchill, “the aggressor … retaliates by the most frightful cruelties. As his armies advance, whole districts are being exterminated. Scores of thousands—literally scores of thousands—of executions in cold blood are being perpetrated by the German police-troops upon the Russian patriots who defend their native soil. Since the Mongol invasions of Europe in the sixteenth century, there has never been methodical, merciless butchery on such a scale, or approaching such a scale. And this is but the beginning. Famine and pestilence have yet to follow in the bloody ruts of Hitler’s tanks. We are in the presence of a crime without a name.”7

The term “genocide” was invented for the crime that Churchill could not name. The term was the brainchild of Raphael Lemkin, a Polish lawyer who himself narrowly escaped persecution, and who spent the war working in Washington, analyzing Nazi occupation policy. In 1944 Lemkin produced Axis Rule in Occupied Europe, which described atrocities in each country occupied by the Third Reich.

Lemkin suggested the term “genocide” to describe Nazi occupation practices. Modeling on such terms as tyrannicide, homicide, and infanticide, Lemkin pieced the term together from the Greek genos (a people), and the latin suffix cida (kill). “Genocide is effected,” Lemkin wrote,

through a synchronized attack on different aspects of life of the captive peoples: in the political field (by destroying institutions of self-government and imposing a German pattern of administration, and through colonization by Germans); in the social field (by disrupting the social cohesion of the nation involved and killing or removing elements such as the intelligentsia, which provide spiritual leadership—according to Hitler’s statement in Mein Kampf, “the greatest of spirits can be liquidated if its bearer is beaten to death with a rubber truncheon”); in the cultural field (by prohibiting or destroying cultural institutions and cultural activities; by substituting vocational education for education in the liberal arts, in order to prevent humanistic thinking, which the occupant considers dangerous because it promotes national thinking); in the economic field (by shifting the wealth to Germans and by prohibiting the exercise of trades and occupations by people who do not promote Germanism “without reservations”); in the biological field (by a policy of depopulation and by promoting procreation by Germans in the occupied countries); in the field of physical existence (by introducing a starvation rationing system for non-Germans and by mass killings, mainly of Jews, Poles, Slovenes, and Russians); in the religious field (by interfering with the activities of the Church, which in many countries provides not only spiritual but also national leadership); in the field of morality (by attempts to create an atmosphere of moral debasement through promoting pornographic publications and motion pictures, and the excessive consumption of alcohol).8

As we shall see, not all aspects identified by Lemkin would be carried over into the “genocide” that states would accept as an international offense. However, the inspiration for the concept is reflected in Lemkin’s analysis.

In August 1945, the World War II Allies decided to hold high Nazi figures accountable through criminal trials. To their written agreement to do so, they appended a document they called the Charter of the International Military Tribunal for the Trial of the Major War Criminals. The Charter identified a category of “crimes against humanity” and defined it as

murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.9

Mass atrocities were individual penal offenses in the documents establishing the post-World War II international tribunals for Germany and Japan under the category “crimes against humanity.” One such offense was labeled persecution and involved acts of violence against members of a particular group, when the actor selects them because of their membership in the group. Another crime had been defined as extermination, involving the killing of persons of a particular group. The law on the conduct of warfare already prohibited acts of violence against civilians in wartime. The concept of crimes against humanity, as developed after World War II, brought prohibitions into the realm of atrocities committed in peacetime.

“Crimes against humanity” was as close as the Charter of the International Military Tribunal came to an offense of genocide.10 Although no one was prosecuted in the post-World War II trials in Germany or Japan for an offense denominated as genocide, the term “genocide” was by then current. When commanders of the killing squads, called “Einsatzgruppen,” that accompanied German occupation troops into Poland and Russia were prosecuted for “crimes against humanity,” prosecutors used the term “genocide” to describe their conduct.

The Nuremberg indictment, in describing acts of the accused constituting war crimes, recited: “They conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.”11

In a prosecution in the US zone in Germany, a US prosecutor characterized Nazi policy as genocide. In his opening statement in the Einsatzgruppen case, Prosecutor Benjamin Ferencz charged that these Nazi units “were to destroy all those denominated Jew, political official, gypsy, and those other thousands called ‘asocial’ by the self-styled Nazi superman.” Ferencz said, “We will show that these deeds of men in uniform were the methodical execution of long-range plans ...